Cornwell v. Bradshaw

(10th by al issues unaddressed that evidence Cir.1989); are 889 F.2d 258 In re Estate Lee, damage how this avoided policy re- 812 F.2d at 256. loss,

quirement physical of direct and of paying damage for such as from mold III. CONCLUSION that occurs after the flood waters recede. judgment of the district court is No justify paying evidence was offered to REVERSED, judgment is REN- damage on the second floor resulting DERED in favor of State Farm. from the flood waters the first floor. do not if the

We know Monisteres could factually

have supported type of causa-

tion was consistent policy with the finding only they

terms. We are nev-

er did.

We close with piece obviously one self-serving but instructive Sidney CORNWELL, Petitioner- adjusters State Farm. One of the testified Appellant, that if the repairs for which no coverage or question at least some existed were re- moved, already State Farm had paid Margaret BRADSHAW, Warden, more than the Monisteres’ estimate would Respondent-Appellee. justify. not, Whether that is true or it No. 06-4322. why identifies cannot go through we estimate in a clearly search for some ap- United States Appeals, Court of propriate claims. questions No one Sixth Circuit. the Monisteres were entitled to substan- tial coverage Argued: under the flood policy. This June 2008. whole suit has been about they whether Decided and Filed: March were entitled they to more than had al- ready received. findWe no basis in this

record on which the district court could specific awarded a additional sum or

even have determined that more was

owed. Legal

C. interest

Because we are reversing the district

court’s decision and rendering judgment in Farm,

favor of State the issue of whether

it appropriate for the district court to legal

award interest on the Monisteres’

judgment is now moot. We note both

parties agreed that the National In- Flood

surance Program does not authorize inter-

est, judgment. before or after See Newton Capital Co., Assurance 245 F.3d 1306

(11th Cir.2001); Beckton, Sandia Oil Co. v.

gravated by prior murder committed cal- (2) design; culation and three counts of murder, aggravated attempted with a fire- arm specification attached to each count (3) and; aggravated attached to the mur- count, penalty der a death specification part the murder was committed as involving purpose- a course of conduct ful killing attempt of or to kill two or people. more appeal, On direct the Ohio Supreme upheld Cornwell’s convic- sentence, tion and and the United States petition Court denied his for a writ of unsuccessfully certiorari. After pursuing post-conviction relief in Ohio court, state sought writ of ha- corpus beas federal district court. The petition district court denied Cornwell’s but issued a appealability certificate of on three granted claims. We a certificate of appealability on a fourth claim. For the reasons, following judgment we affirm the of the district court denying Cornwell’s Prucha, ARGUED: Linda Eleanor Ohio petition. habeas Office, Columbus, Ohio, Public Defender’s Hadacek, Appellant.

for Sarah A. Office I. General, Columbus, Attorney of the Ohio Ohio, Appellee. for ON BRIEF: Linda facts, by The as recounted Prucha, Lowe, K. Eleanor Robert Ohio Ohio, Court of Sidney are as follows. Office, Columbus, Ohio, Public Defender’s three-year-old Cornwell shot Jessica Bal- Hadacek, Appellant. for Sarah A. Office lew in her chest and face at about 2:00 a.m. General, Columbus, Attorney of the Ohio on shooting June 1996. The part was Ohio, Appellee. of a war between the and “Crips” “Bloods.” MOORE, GIBBONS,

Before: and ROGERS, Judges. Circuit Crips and the Bloods were rival

GIBBONS, J., gangs Youngstown, opinion delivered the Ohio. On the after- court, ROGERS, J., joined. in which noon of June members of the two MOORE, 417-20), (pp. J. delivered a gangs had been involved in a shootout on separate dissenting opinion. Elm in Youngstown. Street During the fire, exchange of Crips member Edward OPINION Crips McGaha saw fellow Sidney member GIBBONS, JULIA SMITH Circuit using a black gun. during Also Judge. exchange, grazed a bullet McGaha’s Sidney afternoon, head. Petitioner-appellant Later that McGaha was (1) jury ag- convicted an Ohio hospital released from the and went to his Elm McGa- Meadows both said that he was not there. Street. mother’s residence Cornwell, ha, people and several other Cornwell asked where Boom was. Ham- when standing outside the residence were said that he did not live lett there. Corn- exited a vehicle and a carload of Bloods said, “Well, this,” well tell Boom and fired return fire. McGaha saw Cornwell opened peo- six to nine shots. Meadows and two the same black semiautomatic fire with Conrad, apartment Marilyn in the an- ple — day. used earlier weapon he had apartment, other resident of the and a Cornwell, thereafter, McGaha, and Shortly visiting apartment, friend of hers Sam- at a residence on persons gathered other Lagese uel wounded. Jessica Bal- —were discussing began York Avenue and New was killed. was hit in both the lew She shooting for the of McGaha. retaliation face, chest and but it was the shot to the kill “Boom” They decided to Richard fatal. face that was Miles, present a Blood who had been matter, a call receiving After about the shooting. the first Youngstown police pursued officer Crips set out in three night, That vehicles, descrip- three two of which fit a stolen, ears, two of which were to find tion he received. He saw that the Bonne- Bunkley and Edward kill Boom. McGaha parked driveway ville was in the of a va- were in a stolen Buick. Antwan Jones headlights, cant He turned off his house. Gary Drayton were in a Chevrolet Che- Bonneville, pulled up behind the then light a stolen vette. The third vehicle was lights occupants turned his back on. The Bonneville, four blue Pontiac which carried jumped of the Bonneville out and ran. In the driver’s seat of the Bonne- Crips. occupant The officer ran after the whom Beside ville was Denicholas Stoutmire. jumped the officer believed had out of the was Dami- passenger him in the front seat and, chase, driver’s door after a brief Williams, right in the an Williams. Behind caught caught him. The individual the seat, passenger rear was Leslie Johnson. officer was Cornwell. seat, remaining passenger And in the rear left, and to Johnson’s sat behind Stoutmire trial, At Meadows and Williams identi- nineteen-year-old Sidney who gunman. as the Evidence fied Cornwell carrying a semiautomatic 9 mm black Luger that several 9 mm was introduced gun. of casings shell were found the scenes Youngs- drove around The three cars shooting Elm Street and the Oak first looking an town for about hour for Boom shooting. Park Evidence was also Lane apartment building went to an on and then casings mm introduced that two 9 shell Lane, thought Park where Stoutmire Oak in Bonneville. A forensic were found might he be. Susan Hamlett was outside Luger that all the 9 mm scientist testified talking to porch apartment on the of her from the Oak Park casings shell recovered At about her friend Donald Meadows. Elm shooting Lane and the first Street niece, a.m., three-year-old 2:00 Hamlett’s handgun. shooting came from the same Ballew, doorway came to the of Jessica weapon was never recovered. murder water. Two of porch to ask for drink of jury guilty aggra- A found Cornwell past apartment, her but the the cars drove by prior committed calcula- third, Bonneville, vated murder light stopped. blue design. guilty It also found him tion and voice called out from Cornwell’s Bonneville, attempted aggravated asking for Boom.1Hamlett and of three counts evening. apartment in 1. Boom had been at the earlier 404 phase had trial

murder, specification a firearm at would have been different with and, attached to the to each count tached counsel discovered and corrected the mis- count, penalty a death aggravated murder understanding Eisenberg of Dr. James re- the murder was commit specification that garding mastectomy Cornwell’s childhood involving of conduct of a course part ted as in time for him to determine whether this killing attempt of or to kill purposeful information affected his evaluation of Cornwell was sen people. two or more Cornwell. This court also certified the ag the conviction for to death on tenced issue of whether the district court erred in prison and to for the gravated murder denying request expert for an The Ohio other convictions. evidentiary genetic disorders and the Cornwell, v. 86 affirmed. State hearing issue to the extent relevant to the 560, 1144, 1149, 715 N.E.2d Ohio St.3d portion certified the claim ineffective denied, 1172, (1999), cert. 528 U.S. 1157 in penalty phase. assistance of counsel (2000). 1200, L.Ed.2d 1103 120 S.Ct. unsuccessfully sought relief via II. motion, a Murnahan2 see State Corn well, 1413, A. 88 Ohio St.3d 723 N.E.2d 119 (2000), proceed post-conviction and state Cornwell filed his federal habeas Cornwell, No. 96 ings, see State CR 525 petition after the effective date of the Anti- 2000) 6, (unpublished) (Mahoning C.P. Oct. Penalty terrorism and Effective Death Act summary judgment), (granting the State (“AEDPA”); of 1996 its standards there 00-CA-217, aff'd, No. WL 31160861 govern. Murphy, fore Lindh v. 2002) (Ohio 24, Ct.App. Sept. (unpublished), 320, 326-27, 117 S.Ct. 138 L.Ed.2d denied, jur 98 Ohio St.3d is. (1997). may grant This court ha- (2003). 781 N.E.2d any adjudicated beas relief on claim on the petition In Cornwell filed a for a adjudica merits state court unless the corpus writ of habeas in federal court. As tion it raised sixteen amended claims. 1) resulted a decision that was con- The district court denied Cornwell’s re- to, trary or involved an unreasonable quests experts evidentiary of, application clearly established Feder- hearing and also denied the federal habeas law, by al Supreme as determined petition. granted The district court a cer- States; Court of the or United (“COA”) appealability tificate of on Corn- 2) resulted in a decision was based that racial bias tainted well’s claims on an unreasonable determination of the prosecution, that the trial court erred in in light presented facts of the evidence admitting eyewitness of in the proceeding. State court Meadows, appellate Donald and that coun- failing challenge sel ineffective in 2254(d). § 28 U.S.C. In analyzing wheth- testimony. of admission Meadows’s contrary er a state court decision is to or clearly an unreasonable of application es- expanded This court to include COA Supreme precedent, tablished Court fed- pen- a claim of ineffective assistance in the may alty only holdings eral court look to the phase to the extent it raises the fol- decisions, lowing Supreme issue: whether there is a Court’s not their reason- 362, able probability penalty Taylor, the result of the dicta. Williams v. 529 U.S. Murnahan, 60, bringing appellate 2. State v. 63 Ohio St.3d 584 counsel ineffectiveness 1204, (1992) (Ohio’s claims). N.E.2d 1209 vehicle for

405 1495, my in him 412, 146 L.Ed.2d 389 time for to determine whether 120 S.Ct. (2000). this information would affect his evaluation decision on the mer- A state court post-conviction proceed- In clearly Cornwell.3 contrary to established Su- its is ings, appeals state court of denied this only if the reason- preme precedent Court claim on the merits. The district court contradicts or the result of the decision ing Packer, agreed that the claim was meritless. The Early 537 U.S. precedent. v. (2002). 3, 362, concedes that this claim has been 154 L.Ed.2d 263 Warden 123 S.Ct. preserved for habeas but review contends may grant A federal court habeas relief it is meritless. Cornwell concedes that application clause under the unreasonable (a) AEDPA applies. deference identifies the the state court decision from the governing legal principle correct To establish ineffective assis unreason- Supreme Court’s decisions but counsel, tance of trial must show (b) facts, either ably applies it to the or (1) performance his counsel’s was de unreasonably re- unreasonably extends or ficient, is, objectively unreasonable legal principle to extend a from Su- fuses norms, prevailing under professional preme precedent to a new context. Court (2) it prejudiced his defense. Strickland v. Williams, 407-08, at 120 S.Ct. 529 U.S. 668, 687-88, Washington, 466 U.S. 104 applica- 1495. To violate the unreasonable (1984). L.Ed.2d 674 S.Ct. clause, application tion the state court prejudice test for is whether there is a precedent must have been that, probability reasonable but for coun unreasonable,” “objectively simply er- errors, unprofessional sel’s the result of 409-11, incorrect. roneous or Id. proceedings would have been different. findings court factual S.Ct. 1495. State 694, 104 Id. at S.Ct. 2052. by unless rebutted presumed are correct convincing clear and evidence. 28 U.S.C. disagrees that he must 2254(e)(1). § that the out probability show reasonable trial come of the would have been differ adju a habeas claim is not When Reply ent. He in his brief that asserted court, review de novo dicated a state we prejudice prong “is not out Strickland’s questions mixed questions of law and He is incorrect. come determinative.” Maples Stegall, law and fact. v. 340 F.3d True, prob probability reasonable is “[a] Cir.2003). (6th however, We, re ability to undermine confidence sufficient findings view the district court’s factual Strickland, outcome,” in the Parker, clear error. Wilson 2052, and this is less than a 104 S.Ct. (6th Cir.2008). 682, 691 of the evidence. Id. at preponderance 2052; 693-94, Whitley, Kyles B. 419, 434, 115 1. (1995). measuring But that L.Ed.2d the result applied that his counsel ren- stick is still to whether argues Cornwell have been differ penalty proceedings in the would dered ineffective assistance errors. by failing unprofessional and correct the ent but for counsel’s phase to discover Strickland, Eisenberg 104 S.Ct. misunderstanding of Dr. James See U.S. mastecto- 2052. regarding Cornwell’s childhood contends, opinion We confine our Warden Cornwell’s brief at the certification. As the points encompasses generalized claims of fail- certified resolution of the issue. scope investigate that outside the of ure to fall claim, toww.Dictionary.com. Ei- The to the merits of this breasts.” See

Turning Heritage American Stedman’s Medical expert an witness who testi- senberg was Dictionary. mitigation phase in the of fied for Cornwell argues that had proceedings. Cornwell While he did not have the medical rec- Eisenberg seen his medical records from mastectomy, Eisenberg ords from the re- surgery, Eisenberg might have childhood viewed some of Cornwell’s medical records suggested possibility that Cornwell prior testimony mitigation to his at the Syndrome. had Klinefelter’s Instead of phase, including involving records occa- chromosome, XY men the usual male sex shot, sions when was when he Cornwell Syndrome Klinefelter’s have extra with accident, car a dog when bit chromosome, Symptoms XXY. include sex Thus, given him. had Eisenberg been breasts, sparse body facial and “enlarged hospital- medical from records hair, testes, inability pro- and an small ization, presumably he would re- Furthermore, sperm.” duce men with the viewed them and utilized the information syndrome overweight and to tend to be in them. degree language impair- have “some of There are inconsistencies between the abnormalities, ment.” these Despite “[n]ot surgery medical records from the and the all males with the condition have the same Eisenberg. While he was symptoms degree.” or to the same In- surgery, Eisenberg’s explana- aware of the deed, many the condition adults with “live surgery began tion of the with an account lives similar to men without the [social] people other made fun of Cornwell for Syndrome condition.” Klinefelter’s “is one being overweight. “literally Cornwell common chromosome abnor- the most his mom to if get ask[ed] see he [could] in every in humans.” five

malities One result, chest reduction.” As a Eisenberg men has an extra X chromosome. hundred added, National Health and Hu- Institute Child crude, Not to be but what he told me is Development, Syndrome,

man Klinefelter that he didn’t want to have these titties http://www.nichd.nih.gov/health/topics/ making and this—that kids were fun of (last syndrome.cfm visited klinefelter — does, him at And he school. does. He 2008). Nov. fact, old, 13-year has a reduction. him, I liposuc- asked “Some kind of

The relevant medical records reveal that pretty profound tion?”4 is a Which years Cornwell was thirteen old at the says It something statement. about his time of admission for “bilateral double self-worth, identity, self-image, way transplants nipple mastectomies” with fun people making are of him. And he surgery he had size DD before goes ahead and has this reduction. breasts. The records further reveal that Cornwell had a hormonal imbalance and Eisenberg’s references to a reduction ar- underdeveloped genitalia. that he had guably procedure made the seem cosmetic. discharge summary to the attached Believing that had an elective gave diagnosis a final records procedure, jurors arguably may cosmetic deficiency syndrome “testosterone with him favorably they have viewed less than manifestations of macromastia.” Macro- had that a known medical condition caused largeness enlarged mastia is “abnormal of the breasts that were removed points suggests Eisenberg 4. At various that Ei- calls it a "chest reduction.” uses senberg surgical procedure "liposuction” only recounting referred to the as word his fact, "liposuction” Eisenberg question a In at trial. to Cornwell.

407 mastectomy was a surgery” double when Cornwell metic for breasts were size 38, teenager. 39, Cornwell, or 40. LaShonda his sister, him “lazy” called and said that he Supreme Court has stated surgery had the because he was fat and defense an capital counsel has obli “got that it rid of his chest.” And Corn- gation thorough complete to do a and in well expected himself could not be to pro vestigation and that the American Bar As vide a full account of his history. medical sociation standards are be used as time, He years was thirteen old at the has guides to the reasonableness of counsel’s no training, medical and might well be Beard, 374, Rompilla conduct. give embarrassed to full details of the 125 S.Ct. 162 L.Ed.2d 360 mastectomy. In addition to the fact that (2005); v. Bagley, see also Dickerson the medical might signif records contain a (6th Cir.2006). F.3d Under evidence, icant amount mitigating de ABA Appointment Guidelines for the fense counsel was aware surgery and Performance of Defense Counsel in and thus knew that medical records con Cases, Penalty Death defense counsel Thus, cerning it existed. this is not a case explore history must medical defendant’s where an attorney was looking for the when there has been a hospitalization. “proverbial haystack needle in a Dickerson, and had 453 F.3d at 693. This court good reason to doubt Eady its existence.” has made clear “counsel for defen (6th Morgan, fully dants in Cir. capital comport cases must 2008). professional with these norms.” Id. While these standards should not be noted, however, It should be that trial require read to trial counsel to locate ev- counsel fairly thorough otherwise did a ery tiny piece capi- information about investigation. For example, defense coun- defendant, they require tal do seem to members, sel interviewed several family attorney locate medical records friends, pastor, and a obtained school rec- known, unusual, likely pro- and traumatic ords, records5, obtained other medical and performed cedure defendant as a psychologist had a forensic meet with child. Given the nature of a reduc- “chest and family members. More- performed year boy, tion” on a thirteen old over, pulled together defense counsel all of attorney a reasonable would assumed factors, the known mitigating such as (1) that: emotional distress would have very family Cornwell’s unstable environ- (2) event, resulted from perhaps ment, weight and academic diffi- problems, an underlying problem medical caused the culties, reasonably strong to create a de- possibilities rare condition. Both of these fense. mitigation

would have been useful evi- In Moreover, most cases where the dence. this was not a situation capital has found defense counsel to be rely where it would have been sufficient to insufficient, on the defense counsel almost entire- statements of Cornwell and his family. ly investigate It failed to the defendant’s is obvious from their background that Cornwell’s did not or defense in- family stopped understand counsel procedure. Beverly vestigating though legiti- the nature of the Ter- even it had no mother, ry, upon rely. termed it a “cos- mate defense which to For accident, example, Eisenberg given dog 5. For medical bite. wound, gunshot records about Cornwell's car 408 Smith, deciding, performance that counsel’s 539 out U.S. Wiggins

example, 2527, L.Ed.2d 471 510, was deficient. 123 S.Ct. presented no evi

(2003), counsel defense defi severely dysfunc thus turn to whether this We dence of the defendant’s childhood, physical prejudiced which involved performance tional cient Id. at and care. and abuse foster men post-conviction sexual defense. Cornwell’s Instead, 516, counsel re 2527. Haskins, 123 S.Ct. Dr. E. expert, tal health Kristen report city and pre-sentence a only lied to important indicates that “It would be 523-24, records. Id. social services have possibly know ... could [Cornwell] the lack of The Court found 2527. S.Ct. Klinefelter’s genetic a disorder known as unrea investigation particularly further of which is Syndrome, primary symptom had not dis that counsel given sonable Dr. Haskins offers her enlarged breasts.” to at mitigating evidence any cussed other endocrine, and opinion that “Cornwell’s of Id. at some kind defense. least create problem was confounded perhaps genetic, Romp 524-27, Similarly, in 2527. 123 S.Ct. problems,” a result weight with his 374, Beard, 545 125 S.Ct. U.S. illa by have been avoided careful review could (2005), only 2456, L.Ed.2d 360 adds, “[fur of the medical records. She by defense counsel were mitigation offered to ther information needs to be obtained family for of the defendant’s pleas possible genetic out ... a disorder rule In mercy. Id. at (Klinefelter’s Syndrome).” Cornwell also investigation into the de failing to do an Syn report submitted a about Klinefelter’s ig counsel background, fendant’s defense drome, condition and which described the a troubled child signs nored “obvious” of boys It with the symptoms. its noted alcoholism, hood, mental issues. Id. at and strength agility and and are condition lack Defense counsel was 125 S.Ct. 2456. sports. They may be teased good held, not, permitted to by may their have lower self peers claim that he simply rely on defendant’s during than others adolescence. esteem given childhood unexceptional had an mitigating evaluating evidence. In whether it was unreason- any of other absence preju- 2456. The court Id. at 125 S.Ct. able to conclude that Cornwell was troubled this case particularly by provide seemed the failure to medical diced sig counsel’s failure because defense surgery Eisenberg records mitigating of evidence was nificant amount review, impossibility we first note the of prior police in defendant’s record located Eisenberg knowing whether would de in the same courthouse where located Syndrome had he suspected Klinefelter’s being then tried. Id. at 389- fendant was Nonetheless, we assume seen the records. Defense counsel failed 125 S.Ct. 2456. might purposes that he have done so for though that record even to examine analysis. this the status of Ei- Whatever planned made it known it prosecution had senberg’s suspicions Klinefelter’s about that record. Id. use Syndrome, Eisenberg have had in- would available to him. formation not otherwise argued It could be level He have known that Cornwell had would investigation greatly here exceeded that genitalia and a testoster- underdeveloped Wiggins Rompida so that done known deficiency, one and he would have finding that counsel was not deficient of breast tissue removed. He the amount application an unreasonable would not be relayed could have this information purposes law. For clearly established assume, however, jury. we with- opinion, that Despite surgery the new information cal records of the Eisenberg. to revealed, have medical records would The state courts could reasonably reject an might pre- much the evidence which be assumption jurors of that teenagers blame if sented Cornwell were determined to for their own weight problems and some- Syndrome is simi- quite have Klinefelter’s how consider those who are overweight or mitigation actually lar to evidence admit- lazy surgery or have cosmetic more de- penalty phase. jury ted at the heard serving penalty of the death than those weight prob- about Cornwell’s energetic who are thin or or surgery lems, breasts, learning diffi- large his his related to medical conditions. And the culties, children, teasing by other his state reasonably ju- courts could find that poor performance sports, and his low rors would not focus on such in factors They part self esteem. learned about the case, given the other evidence of both miti- in him played driving all of these factors to gation and an aggravating factor. Our activity. gang system justice finds its foundation average belief that can citizens and will Ultimately, the difference between the weigh them, all the evidence presented to proof jury they the proof heard and law, follow the and reach a well-reasoned likely Eisenberg would have heard had jurors verdict. To conclude that would seen the medical records amounts to the consider culpable Cornwell more because additional information the records. Po- he overweight lazy appears was or to re- tentially, they heard might also have flect a distrust of the jury soundness of Syndrome. Cornwell had Klinefelter’s decisions—a view at odds guaran- with the The end effect would have been that the tees of the Sixth Amendment and the un- jury would have understood that the sur- derlying judicial principles system. our gery was to a related medical condition. reasonably The state court could have con- jurors To thought the extent cluded that there was not reasonable Cornwell had undergone purely cosmetic probability that outcome the trial procedure, this view would have been would have been different if the medical countered. And Cornwell indeed had records had Eisenberg. been available to Syndrome, they Klinefelter’s would have Therefore, we affirm the district court’s being overweight learned that often ac- assign- denial of habeas relief as to this condition, companies the countering thus ment of error. any belief that overweight Cornwell was lazy. he was because

In evaluating prejudice, it is important mitigation to note much proof argues that the district court involving surgery presented was to the erred in denying genetic his motions for a Moreover, jury. proof aggravating expert evidentiary disorders and an hear- factor —that the murder was committed as ing. The district court denied an eviden- part of a involving course of conduct because, tiary hearing whether or not purposeful killing attempt or to kill two or diligently sought develop Cornwell had people strong. more —was the factual claim in state bases court, We are unable to conclude that it was he had not shown that an evidentia- objectively ry hearing necessary develop unreasonable the state court to conclude Cornwell was not facts further. The district court denied prejudiced by any deficiency in genetic expert counsel’s the motion for a disorders performance failing provide argues the medi- for the same reason. The Warden does not contend that does cause the Warden proper. She denials were that both and, thus, in diligence at fault or lacked diligence Cornwell was not address Cornwell’s claim, the developing that Cornwell the factual basis of implies nor neither contends factual bases of his turn of whether the develop the we to consideration failed to its discretion. in court. district court abused claim state de the district court’s review We court did not The district discovery proceeding in a habeas nial of denying in the motion abuse its discretion of discretion. Williams for an abuse genetic expert a disorders because the for (6th Cir.2004). 932, 974 F.3d Bagley, 380 facts, fully developed, if would not have led experts request for is a request a Because that federal the district court to believe discovery ap standard discovery, the This appropriate. habeas relief was is shown, the district cause plies. good For because, preju true “in order to establish permit to discov court has the discretion dice, peti the new evidence that a habeas 6(a) Rule proceeding, in a see ery habeas in a presents tioner must differ substantial 2254 Proceed Governing of Rules Section subject matter— way strength and —in Courts, the States District ings for United actually presented from the evidence petitioner pres “provided that habeas Mitchell, 400 F.3d sentencing.” Hill v. allegations showing reason to specific ents (6th Cir.2005). 308, 319 facts, fully developed, if believe that determining In that Cornwell did not may the district court to believe lead prong of his inef- prejudice establish the Lott appropriate.” relief is federal habeas Strickland, claim under fective assistance (6th Cir.2001). 594, 602 Coyle, 261 F.3d possibility we took into account the “Conclusory allegations enough are not to might have been determined to Cornwell 6; peti Rule discovery warrant under Syndrome though Klinefelter’s even have specific allegations forth tioner must set speculation a determination was such (brackets Williams, at 974 fact.” 380 F.3d by a investigation the absence of further omitted); marks see quotation and internal concluded, however, genetics expert. We (“Rule fishing also 6 does not sanction id. diagnosis Syndrome that a of Klinefelter’s petitioner’s on a conclu- expeditions based would not have affected the outcome of the (internal quotation sory allegations”) or at least would not have penalty phase omitted)). marks and citation finding prej- the state court of no rendered “This court reviews a district objectively udice unreasonable. Given this an eviden- whether to hold court’s decision conclusion, hardly it can an been an of discretion.” tiary hearing for abuse for the district court to abuse of discretion (6th Brigano, Vroman v. discovery have denied that would not have Cir.2003). petitioner has not failed “If penalty phase. outcome affected the factual basis of a claim in develop court, may the federal court hold state C. factual hearing petitioner’s alle [when] him to gations, proved, would entitle However, racial argues are bias “prisoners relief.” who Id. prosecution. tainted his He asserts deficiency at fault for the state-court Bunkley satisfy heightened standard the “state’s witness Edward record must life at risk evidentiary hearing.” putting balked obtain 420, 433, testimony fit with the State’s making Taylor, Williams v. (2000). theory also asserts Be- of the case.” Cornwell S.Ct. 146 L.Ed.2d 435 that, reluctance, Bunkley’s response similarly cuted while situated individuals of Bunk- a different race Mahoning County prosecutor asked were not. * * ley: you give fry your a f* if we “Do Denying that he must show a discrimi- * * * * n* or not?” Cornwell contends effect, natory argues that, under racial question “evinces obvious McCleskey v. Kemp, 481 U.S. proceedings animus that tainted all of the (1987), 95 L.Ed.2d 262 he need against rights Cornwell” in violation of his only show that the decision makers in his equal protection process.6 to and due case acted with discriminatory purpose. Reply at (citing McCleskey, 17 481 U.S. at In post-conviction proceedings, the state 1756). 292, however, 107 McCleskey, S.Ct. appeals court of held that the trial court says that “a criminal defendant prove must in denying had not erred this claim be- purposeful that discrimination had a cause, reasons, among other had Cornwell discriminatory effect on him.” 481 U.S. at any failed to or produce demonstrate evi- 292, (internal 107 S.Ct. 1756 quotation similarly dence situated individuals of omitted). marks Armstrong, issued nine prosecuted. a different race were not The later, years clarified how that effect must district court held that the state court 465, proven. be 517 U.S. 116 S.Ct. rejection to, contrary of this claim was not 1480. of, application clearly or an unreasonable Consequently, we believe that the state Supreme precedent. established Court court did not unreasonably apply clearly “It appropriate judge is to se established precedent, nor prosecution according lective claims to or did it make an unreasonable determination dinary equal protection standards.” in light facts of the evidence pre- States, 598, 608, Wayte v. United 470 U.S. sented. (1985). 1524, 105 S.Ct. 84 L.Ed.2d 547 Thus, must prose- Cornwell show 2. cutorial policy discriminatory had a effect argues Cornwell the state discriminatory and was motivated a court and the district court improperly

purpose. Id. “To a establish discriminato him evidentiary hearing denied an on his case, ry effect in a race claimant must claim prosecu that racial bias tainted his similarly show situated individuals argument tion. The court state is not prosecuted.” different race were not cognizable corpus in habeas proceedings, 456, Armstrong, United States v. which cannot be challenge used to errors 465, 1480, 116 S.Ct. 134 L.Ed.2d 687 post-convic or in state court deficiencies (1996). Dutton, proceedings. Kirby tion See v. (6th Cir.1986). 245, 794 247 F.2d

Assuming prosecutor made the al- leged statement with racial animus would asserts that the Warden certificate discriminatory purpose. most show As of appealability did not include this issue. correctly noted, claim, appeals closely the state court of It is related to the certified completely however, Cornwell has failed show so that it would not be unreason- discriminatory prose- effect—that he including able to read the COA as both rights ap- Cornwell asserts that his under the the state and the Fourteenth Amendment plies Fifth Amendment were violated. We con- to state action. See San Francisco Arts Athletics, Comm., brought Olympic strue his claim as one under the & Inc. v. U.S. 483 Amendment, 522, 21, 2971, Fourteenth not the Fifth Amend- U.S. 107 543 n. ment, (1987). prosecuted by because Cornwell was L.Ed.2d 427 claim, an abuse of a denial was not latter, had such if Cornwell

former hearing. for such discretion. district court asked the however, that Cornwell did appears, It hearing on this is- evidentiary

request D. sue. the effective right had the however, that he had made Assuming, di appellate counsel assistance court that the district or request, such a Supreme Court appeal rect to the Ohio so, and assum he had done believed appeal right. it was his first COA, because within the included ing the issue is 2953.02; § Evitts Rev.Code Ann. See Ohio required. We review hearing is not 105 S.Ct. evidentiary Lucey, U.S. of an denial district court’s (1985). In order to show Ab 83 L.Ed.2d 821 of discretion. hearing for an abuse (6th counsel, Bell, ineffective assistance dus-Samad Cir.2005). grant deciding performance whether deficient “In must show both Strickland, 687, 104 a federal court evidentiary hearing, an prejudice. hearing a whether such consider must S.Ct. the applicant prove to could enable argues appellate counsel Cornwell which, true, if allegations, factual petition’s appeal on to the were ineffective direct to federal ha applicant the

would entitle failing Court in to raise his Supreme Ohio Landrigan, 550 relief.” Schriro beas denying in claim that the trial court erred 1940, 465, 1933, 167 127 S.Ct. U.S. eyewit- suppress motion to Cornwell’s (2007). to Cornwell wants 836 L.Ed.2d This ness of Donald Meadows. prosecutor that the made present evidence originally was raised Corn- subclaim evidence, This offending statement. motion, which the state well’s Mumahan however, demonstrates discrimina at most court denied in a standard order. supreme does not establish dis tory and purpose court held that the claim The district Therefore, Cornwell criminatory effect. lacked merit. if allegations, that his factual cannot show In him to relief. would entitle proven, Because Ohio offers to gap, fill this order to unexplained, Cornwell Court’s order was similarly showing present evidence that AEDPA deference does not argues a race different situated individuals Instead, He is correct. modified apply. presented prosecuted. not were applies. AEDPA deference Where and ad in state court no such evidence a constitutional disposes state court diligently argument now he vances no analysis, claim fails to articulate its but in state present this evidence tried to independent court conducts “an review this Hence, question, to the evidence court. law to deter applicable record and admittance, by clear must “establish gain whether, AEDPA mine under the stan con convincing evidence but for and dard, contrary the state court decision is error, no reasonable factfinder stitutional law, clearly unreasonably applies federal applicant guilty of found the would have law, or is on an unrea established based 28 underlying offense.” U.S.C.A. in light of the facts 2254(e)(2)(B). sonable determination § The evidence fails presented.” Howard v. of the evidence Evidence that other meet this threshold. (6th Bouchard, 405 F.3d 467 Cir. persons prosecuted is not evi were 2005). de novo but is Such a review is not guilty. is not If the dence that Cornwell grant “cannot relief deferential because we deny hearing court did district

413 presented trial, the state court’s result contradicts at the time unless erred in the strictures of AEDPA.” Id. 467-68. denying his motion to suppress. eye based on “[C]onvictions Prior to the suppression hearing, following identification at trial

witness Meadows identified Cornwell four times: pretrial photograph identification will only ground 1) be set aside on (the On day June 1996 after the procedure photographic identification was shooting), hospital while impermissibly suggestive give as to rise so heavily morphine, medicated with Mead- very irrepara to a substantial likelihood of picked ows photo out of a six- ble misidentification.” Simmons v. United time[,] person photo array. “At that he States, 377, 384, U.S. pain apparently was in obvious un- (1968). L.Ed.2d 1247 case must “[E]ach der the influence of the medication.” be considered on its own facts.Id. In Cornwell, State v. No. 96-CR-525 at 1 determining whether an identification is (C.P. (order Mahoning County) denying admissible, this part court follows two first, motion to suppress). At Meadows analysis. The court first considers wheth identification, had not made an either procedure unduly suggestive. er the because he not want to get did involved Mitchell, (6th 250 F.3d Wilson (according police testimony summar- Edwards, Cir.2001); Ledbetter v. answers) izing Meadows’s or because he (6th Cir.1994). 1062, 1070-71 The court recognize anyone did not (according to must procedure decide the .itself steered testimony), Meadows’s but the officer another, suspect the witness to one or array again handed Meadows the independent of the witness’s honest recol told him to take his time and make sure Wilson, lection. at F.3d 397. “The anyone recognizable. whether was It proving defendant bears the burden of was then that Meadows identified Corn- (cita Ledbetter, element.” 35 F.3d at 1071 possibly well as the driver of the car in omitted). tion If procedure sug the was 2.2) question. day, Id. at The next gestive, the court then determines wheth 13, 1996, police again June the visited er, circumstances, totality under the of the According testimony, Meadows. to their the identification was nonetheless reliable “in type he did not seem to be the same Wilson, and therefore admissible. pain or discomfort” and did seem (citation omitted); Ledbetter, F.3d at 397 under the influence of the medication. at again Id. He out picked Cornwell of the

Ohio law forbids the introduction photo array. same part of evidence that was not of the trial 3) (June 17, 1996), days Four later appeal. court’s record on See State v. videotaped picking Meadows was Corn- Ishmail, 54 Ohio St.2d 377 N.E.2d array. photo well’s from the same Id. (1978). Appellate counsel were 4) preliminary hearing (July At the failing not ineffective for to introduce addi evidence, days two weeks and six after the prohibited tional as state law shooting), picked out subclaim, Meadows Cornwell doing them from so. This there case, in fore, group of the of codefendants the presented focuses on the evidence words, present who also in the courtroom. the time of trial. In other were Corn- Meadows, It argument appellate well’s is that counsel was then for the first time, were ineffective in not identified as the shooter. contending the Cornwell court, purely trial based on the evidence Id. that Meadows made motion, possibility there is a the suppression the denying

When no evi- upon there was found an unconscious transference based trial court suggestive iden- had used police dence the possibly that he saw Meadow’s admission procedures: tification shooting. the Cornwell sometime before no police that the in testified The victim however, go to arguments, All of these particular per- any of the way suggested identification, the sec- reliability the of the array prior to photographic in the sons analysis. None of the step ond of the identifications, they nor did any of the suggestiveness arguments relate encouragement of or approval indicate having Meadows’s procedure. Even being made. the identifications upon pain in and under the influence of been not numbered were photographs morphine when he first identified Cornwell proce- tape video identification until the shows, most, susceptible was he however, dure[;] previous in each Hence, victim, not that it occurred. suggestion, made identifications picked out. person point something needs to else Defendant was photographic ar- exact same The entire procedure in identification in order to to the victim on each of ray was shown missing ingredient; nonethe- supply look at the he was asked to the occasions less, he fails to do so. array. There is further that, argues contrary, To the that[,] hearing preliminary at the the initial identifica- the time between Court, Defendant Municipal Youngstown him tentatively when called tion Meadows with others in the Courtroom preliminary hearing the driver and the The victim was

charged in the crime. when Cornwell was identified as the shoot- identify the Defendant as the able to er, reports television identi- Meadows saw when he ob- of this offense perpetrator fying suspect. argu- Defendant and the others Cornwell as a This served There was together First, the Courtroom. again fails for reasons. it ment two im- testimony any prompting or of identification, no goes reliability sug- to of not police pre- of at the proper conduct the Second, the evi- gestiveness procedure. of liminary hearing. by support cited does not dence Cornwell evidence, allegation. his In the cited that Mead- argument of his support In Meadows, when asked whether he had sup- testimony should have been ows’s many picture cites of the facts seen Cornwell’s on television news pressed, Cornwell He includes: the initial mainly mentioned above. “I when reports, replied, [sic] seen anyone, identify Meadows to his failure of taking the ambulance came and was me the influ- pain and under having been away. seeing all I ...” That’s remember the morphine when he made first ence of any fails cite evidence Cornwell also to identification, identify and his failure to police supplied sugges- that the themselves prelimi- until the Cornwell as the shooter brief, tiveness. In his Cornwell conceded notes that as time nary hearing. He also hearing, the “Meadows suppression that at more certain in passed, Meadows became police that the officers were not testified changed his mind his identification but him doing anything encourage pick to to (first in sitting about where Cornwell was photograph. police out a He said the seat, the driver’s then Meadows was not arrested[,] told him that someone had been driver). sure, then sat behind the they give him the name of the but did difficulty emphasizes Cornwell also who had been arrested.” seeing argues person the shooter. Cornwell also suggests preme Cornwell never the rele- precedent Court and was not based decisions, vant court the trial court state on an unreasonable determination of the motion, suppression of the denial light facts in presented. evidence Supreme rejection Court of the Mumahan affirm We the district court’s denial of this motion were based on deter- unreasonable subclaim. light minations of the facts of the evi- dence presented. He does not show that E.

the relevant state findings court factual clearly were erroneous. As the trial court 1. found when denying suppression mo- Cornwell argues the trial court tion, police did to nothing suggest to by erred denying his motion to suppress person Meadows that Cornwell was the he Meadows’s testimony. In state post-con- identify. should viction proceedings, appeals court of Cornwell fails to establish undue sugges held this claim meritless because “[t]he itself, tion in the identification procedure upon evidence relied fails the threshold of which he prove. has burden to See cogency and lacks credibility.” The dis- Ledbetter, He, therefore, 35 F.3d at 1071. trict court rejec- held the state court prejudice, fails show on which issue tion to, of this contrary claim was neither he proof. has the burden of Strick See nor an of, application unreasonable clearly land, 687, 104 466 U.S. at S.Ct. 2052. This Supreme established precedent.7 Court fail subclaim would even if it were re As impliedly concedes novo, AEDPA thus, viewed de it fails under deference applies. Specifically, the “con- modified AEDPA Rejection deference. trary to” applies clause subclaim the Ohio because the state to, court contrary appeals, neither nor an explaining unreason while that the of, application clearly able claim established Su- failed cogency for lack of and credi- claim, opening paragraph argument of this as conviction that the trial court erred petition, in the stated federal habeas states: denying suppress the motion to the testi- failing suppress “The trial court erred in mony of Donald Meadows. tainted, eyewitness unreliable If, hand, on the other Cornwell is advanc- photo Donald up Meadows. The line [sic] subclaim, ing a second there is still no need suggestive was so as to be unreliable.” Inter- consider whether he forfeited it in pro- state preting separate these two sentences as sub- ceedings, because he forfeited it here. No- claims, the district court held first where in photo brief does he attack the during had post-conviction been raised state (the lineup position photos itself of the in the (as above), proceedings summarized but the array, similarity dissimilarity the or of Corn- only second had motion, been raised in Mumahan the others, photo well’s to the or the choice of part and then as of ineffective an Instead, use). photo which of to Cornwell he appellate assistance counsel claim. De- attacks, photo lineup procedure: alleg- the the this, spite the district court held that both edly suggestive police comment the officer preserved subclaims had been habeas re- for being made while Meadows was shown that view. lineup. may To extent that the Cornwell be may questioned It be whether the second trying photo lineup to advance some other quoted represents sentence a separate sub- argument, it is forfeited. See United States claim, opposed development as to a of the Elder, (6th Cir.1996) ("[I]t argument begun in the first the sentence: appellate is a settled rule that issues adverted suppressed trial court should have Meadows's manner, perfunctory unaccompanied to in a prod- unreliable because it was the by developed argumentation, some unduly suggestive uct effort pro- of an identification accurate, waived”) (internal reading are quotation cess. If this deemed is so called the omitted). really just part post- subclaim is second of the marks casting doubt on Meadows’s rights federal firearm tests mentioning the bility and confrontation, by light the applied ability no to see the shooter’s face process due Packer, this precedent. by gunshots. See the None of Supreme produced Court 8, 123 trial S.Ct. 362. relevant to a claim of 537 U.S. at evidence is court did not err court error. The the trial court claims that Cornwell it unaware failing to consider evidence was motion. denying suppression in erred of trial. of at the time in heading in the his federal He states petition: habeas argu- post-conviction To the extent this IT ERRS WHEN A TRIAL COURT asserting trial court is viewed as one ment TO A DEFENSE MOTION DENIES it, the based on the evidence before error THE TESTIMONY OF SUPPRESS It fails for does not succeed. argument THAT WHEN AN EYEWITNESS respect explained the reasons above with TESTIMONY IS UNRE- WITNESS’S for ineffective assistance of to the subclaim A THE RESULT OF LIABLE AND Essentially, trial appellate counsel. PHOTOGRAPHIC SUGGESTIVE to denying did not err the motion court UP, IN VIOLATION OF U.S. LINE arguments suppress because Cornwell’s AMEND. XIV CONST. weight given relate to the to be same body identification, the claim makes the admissibility. its not did ask this court to argument. Cornwell unnecessary It is to consider Cornwell’s that trial coun- certify appeal subclaims appeals that the state court of contention regard sup- sel were ineffective based on an unreasonable decision was out hearing. As he did not set pression light facts in determination of the federal, law, governing or such state presented. That court found evidence them, certify not hearings, panel this did only post-conviction evidence to seek it is now too late for Cornwell if it credibility. lacked Even should have F.3d at 528-29. rehearing. Slagle, See credible, found it still was irrelevant. been argues that the trial contrary clearly It was not established denying suppression court erred in for the state precedent presented or motion because evidence appeals to find that irrelevant court post-conviction proceed until discovered “cogen- evidence was irrelevant or lacked that, after Meadows had tenta ings shows cy.” judgment affirm the of the dis- We tively photo, police out one officer picked claim. denying trict court commented, guy “that’s the one allegedly up[;] you doing good, we so far Mr. picked argues He that this comment Meadows.” he argues should certainty Meadows’s improperly enhanced evidentiary granted hearing been person. the correct he had identified and in suppression both state court support argument, In further of his Corn- argument is federal court. The state court pre well evidence that also was not cites not here. cognizable proceedings post-conviction sented until reliability responds The the federal and that attacks the Mead Warden cites(l) the the court issue was not included within post- ows’s identification. He that, Assuming has not been by Meadows COA. the issue conviction admission occurred, and that it was included within shootings when the he was under forfeited closely it somewhat marijuana the and alco the COA because was influence of more (2) claim, trial; argument certified the hol than at and related to the he admitted

417 (“[T]he Any post-conviction fails. evidence ir- Supreme is Court ... has it made Therefore, to this claim. relevant Corn- clear and come down hard on point the well cannot show that his factual allega- that a thorough complete and mitigation tions, proven, if would entitle him to relief. investigation absolutely is necessary in cases.”). The court did not district abuse its discre- capital Moreover, as we have denying tion evidentiary an hearing. explained, partial, “a ultimately but incom- plete, mitigation investigation not does sat-

III. isfy requirements” Strickland’s for effec- Dickerson, tive counsel. 695; 453 F.3d at reasons, foregoing For the affirm we the see also v. Bagley, Johnson judgment of the district denying court (6th Cir.2008) (“[A]n 602 unreasonably petition for Cornwell’s habeas relief.

truncated mitigation investigation is not MOORE, KAREN NELSON cured simply Circuit because ... some evidence Judge, dissenting. placed was before jury.”). As the ma- jority begrudgingly admits, in a pen- death majority has por- determined that case, alty thorough a mitigation investiga- traying fat, teenager lazy, male as and requires tion counsel to investigate, at the choosing liposuction to avoid working out least, very the known medical history of has jury the same effect on a portraying as defendant, including hospitalizations. teenager male as the sufferer genet- of a Maj. 407; Op. Dickerson, at see also 453 ic disorder that causes underdeveloped F.3d at 693-94. testes, disturbance, gender identity and required size-DD breasts that a double It is undisputed counsel in this case mastectomy age thirteen. Because I was aware that Cornwell as a thirteen- conclude these two scenarios year-old teenager hospitalized was potential yield very outcomes, different double mastectomy, but counsel never I dissent. bothered to locate those medical records are points There several disagree provide them to Dr. Eisenberg. Un- ment myself between majority. der Supreme precedent, this ais First, unlike majority, I do not believe blatant duty. violation of counsel’s Dicker- only son, need we assume that counsel 453 F.3d 693-94. Given counsel’s deficient; this case was Supreme applying satisfy failure to straightforward re- Court and Sixth Circuit precedent, I be quirement, why I am majority unsure that it lieve is clear that attor believes could be argued “[i]t ... that a ney’s representation at penalty phase finding that counsel was not deficient deficient. As the Court has would not an application be unreasonable times, stated numerous clearly “counsel Maj. ha[ve] established law.” Op. at their obligation ‘fulfilled] majority to conduct a 408. The attempts to ameliorate thorough investigation of the defendant’s trial counsel’s failure of mandatory ” then background,’ representa counsel’s duty investigate medical records as- See, tion is deficient. e.g., Wiggins that, serting “trial counsel otherwise adid Smith, 510, 522, fairly investigation.” Maj. thorough Op. at (2003) However, L.Ed.2d (quoting Williams as our case law makes 362, 396, Taylor, clear, U.S. 120 S.Ct. thorough “otherwise investiga- (2000)) (second tion,” id., 146 L.Ed.2d 389 al is not the thing same as the teration in Wiggins); see also thorough Dickerson v. investigation required by Strick- (6th Cir.2006) Bagley, 453 F.3d land-, 693 not given counsel are a free pass to por- was phase, Cornwell penalty At the area of inves- duty in one specific a violate fat, lazy person as a investigate trayed by family other his diligently they tigation (“[A] situations, Dickerson, at 695 of easy way out areas, who took the see incomplete, mitiga- ultimately undergo to “cos- by his choice partial, but evidenced satisfy Strick- not investigation working does out to tion surgery metic” instead (noting id. see also requirements.”); See, land’s e.g., Appendix Joint weight. lose (6th Bell, 417 F.3d 631 in Harries that (“J.A.”) 2335, 2348, (Penalty Phase at that coun- Cir.2005), concluded this court 87) 73, 80, (testimony of at Tr. 5/21/97 they when was deficient performance sel’s that “[Cornwell] LaShonda things, among other investigate, to failed know,” was still lazy, you “[Cornwell] though coun- history, “even mental health and that surgery, his lazy,” like even after interviews of had conducted various sel lazy time to took [Cornwell] “it was like and acquaintances family and petitioner’s Tr. stuff’); (Penalty Phase J.A. at 2412 do information, including other sought had 150) (testimony Beverly Corn- 5/21/97 evaluations”). a Such competency two referring to Corn- Terry repeatedly well giving po- to a be tantamount rule would “cosmetic”). No one uti- as surgery well’s violating his pass for a free lice officer than image more emphasized lized and so suspect, an unarmed duty to shoot argument, the closing At prosecutor. all other duties complied with long as he work “Did prosecutor [Cornwell] stated: Therefore, I suspect. he owed to run, eat, you weights, watch what out with trial counsel was conclude that Cornwell’s try to and do? the rest of have what all us deficient. No, had a fat liposuction. He he went majori- Second, agree with the I cannot sake, For God’s [Cornwell]’s reduction. has that Cornwell ty’s assertion baseless (Penalty Phase Tr. lazy.” at 2542 J.A. resulting from trial prejudice not shown 274). 5/21/97 prejudice, a deficiency. prove To counsel’s been Had medical records Cornwell’s “there is a rea- defendant must show expert hired to given Eisenberg, to Dr. that, for counsel’s but probability sonable case, likely he aid mitigation errors, the result unprofessional may be have realized would have been different.” proceeding would Syndrome, ge- from Klinefelter suffering Washington, 466 U.S. Strickland weight gain, en- (1984). disorder that causes netic L.Ed.2d 674 issues, breasts, un- and larged language has met his burden I think that Cornwell The fact that derdeveloped genitals.1 on this issue. that, males "[a]s also notes XXY Child Health and The Institute 1. The National Institute (“Institute”), puberty, they don't make as much organ- enter often Development Human boys. to This can lead Congress testosterone as other in 1962 to inves- ization created taller, body, less facial and throughout less muscular development tigate human hair, boys. body hips other and than that "Klinefelter broader process, states entire life breasts, condition, teens, may larger males have XXV As XXY syndrome, as the also known bones, energy than lower level weaker males who a term used describe is boys boys.” can also have their other Id. Such in most of X chromosome an extra problem, language such as having chro- “some kind of the usual XY cells. Instead of late, have, language using learning talk trouble these pattern most males mosome needs, problems thoughts and express National Insti- pattern.” an XXY men have they reading, processing what Develop- and trouble and Human tute Child Health ment, Although boys tend to be Id. XXY Syndrome, http:/ hear.” Klinefelter /www. self-confident, active, and “quieter, less less nichd.nih.gov/health/topics/ldinefelter— 6, 2009). boys,” (last helpful than other more obedient syndrome.cfm visited March Haskins, post-conviction expert, Dr. a fo- majority contends that “[t]he state courts could psychologist just reject rensic Eisenberg, reasonably like Dr. an assump- jurors tion that blame teenagers for their realized this after possibility reviewing the own weight problems and somehow consid- strong medical records indicates a likeli- er those who are overweight lazy or or hood that Dr. Eisenberg would have have cosmetic surgery more deserving of reached this realization. With this knowl- the death penalty than those who are thin edge, Eisenberg Dr. could have corrected or energetic surgery or have related to image the being of Cornwell portrayed by medical Maj. conditions.” Op. at 409. I informing jury Syn- that Klinefelter find reasoning odd, this given the fact that drome was likely cause of Cornwell’s prosecutor in this person case—a who various problems, not laziness. This infor- likely significant has experience exper- and mation would have the jury allowed regard tise in persuades to what juries— view in a much more sympathetic appeared to assume jury that the would be light a teenager as who had lazy been —not heavily swayed by Why this fact. else easy life, and taken the in his road but as a would the prosecutor emphasize the issue teenager who suffered the burdens of a so conspicuously in closing argument?2 genetic disease that he could not control Because I believe that jury, as the and for which he received a diagno- never prosecution hoped, likely viewed Cornwell sis, Furthermore, let alone treatment. ev- sympathetically less placed and more cul- idence of Syndrome Klinefelter would re- pability on Cornwell than it would have duce Cornwell’s in a way blameworthiness had he not portrayed been as overweight weight-related that the evidence alone did lazy, and I cannot accept majority’s not. Because this genetic-disorder image rationale on this Looking issue. at the mitigation creates “a ease that bears no whole, case aas relation to” the case presented, laziness although suppose possible [I] it is that a Beard, Rompilla 374, 393, jury could have [all heard the evidence] (2005), 162 L.Ed.2d 360 I be- and still have decided on the pen- death lieve that Cornwell has met his burden of alty, that is not the It goes test. without showing prejudice. saying that the undiscovered mitigating adolescence, during may Thus, "XXY question, males ... my this in opinion, is no. I struggle sports, meaning they school and jury, do not find fault with the but rather I may 'fitting have more trouble in' with other wholly inadequate find fault mitiga- with the kids." Id. presented tion case jury. that was to the To suggest that such a conclusion is "at odds agree majority I with the system that "[o]ur guarantees with the of the Sixth Amendment justice finds its foundation in the belief that underlying and principles judicial of our average weigh citizens can will and all the system,” necessarily implies id. at them, law, presented evidence follow the jurists all who order new trials based on a Maj. reach a Op. well-reasoned verdict.” present proper failure to jury evidence to the added). However, (emphasis at 409. very this are at odds with the Sixth Amendment. If presumes idea jury given that a is all the arena, any there is distrust it is a evidence needed to reach a well-reasoned ver- who, by juries distrust dict; of verdicts rendered begin before one can even to talk about through judges, fault of counsel or have not well-reasoned, jury whether a verdict is one given necessary been proper all the infor- must first presented review the evidence weigh mation to jury. to reach a inquiry It is this order verdict. threshold that we are confronted with This is a distrust in this case: does not offend the Whether the jury given principles all judicial system, it information needed to our but rather reach a well-reasoned verdict. protects The answer to principles. those vital accomplish. evidence did whole, weight-based might well

evidence, aas taken his burden of Thus, has met jury’s appraisal have influenced facts, developed, fully if that “the showing likeli- and the culpability, [Cornwell’s] court to believe may the district if the lead result evidence of a different hood Id. appropriate.” relief is federal habeas to undermine is sufficient gone had least, Therefore, hold, very I at the actually would in the outcome confidence genetic a ex- is entitled to that Cornwell sentencing. at reached has Klinefel- to determine whether he pert 393, 125 Rompilla, court and that the district Syndrome ter (internal added) quotation (emphasis by holding to its discretion abused omitted). Therefore, I marks citations contrary. respectfully I dissent. proven has hold that would of counsel assistance of ineffective claim to the decision the state-court

and that I unreasonable. objectively

contrary was court’s denial of the district reverse

would relief.

habeas

Furthermore, hold the dis- I would by denying its discretion

trict court abused A genetic expert. motion for Cornwell’s America, STATES of UNITED discovery re- expert is a request for Plaintiff-Appellee, of a court’s denial quest; thus a district is expert of an appointment motion for Lott v. of discretion. for abuse reviewed Cir.2001). (6th 594, 602

Coyle, 261 F.3d MEDINA-ALMAGUER, Sergio Paulo of a may, in the context “A district court Defendant-Appellant. discovery, pro- permit proceeding, habeas No. 07-4254. presents petitioner habeas vided showing reason to be- specific allegations Appeals, States Court United facts, may fully developed, lieve that Circuit. Sixth feder- district court believe lead the Id. appropriate.” al is habeas relief March Argued: above, that a I believe explained As 12, 2009. and Filed: March Decided Syndrome would diagnosis of Klinefelter affecting probability have a reasonable and ren- penalty phase

the outcome of finding preju- of no

dering the state-court (1) unreasonable because objectively

dice strong is itself a genetic disorder

having subject not and was a addressed

mitigator (2) mitigation case phase, penalty disorder, opposed genetic on a as

centered lazy by who is

to an individual overweight sympathy

nature, much more would induce (3) Syn- Klinefelter jury,

from the indeed reduce

drome could

blameworthiness, something

Case Details

Case Name: Cornwell v. Bradshaw

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 11, 2009

Citation: 559 F.3d 398

Docket Number: 06-4322

Court Abbreviation: 6th Cir.